Pot Block! Trapped in the Marijuana Rescheduling Maze

October 30, 2013

One journalist-provocateur’s journey into the drug war bureaucracy shows why previous efforts to reschedule pot have been DEA’d on arrival.

Under the Controlled Substances Act, marijuana is classified as a Schedule 1 drug in America. According to the Drug Enforcement Administration, Cannabis sativa is as dangerous as heroin. (You know… as in heroin!) To justify this ranking, the DEA has declared that the plant has absolutely no medical value. Zero. Nada. Zip. The federal government has determined that this position is backed by science.

Marijuana’s current status as one of the most dangerous drugsin America became official in 1970, during the Nixon administration. (Putting matters in ludicrous perspective, cocaine and even Breaking Bad meth are Schedule II.) Every administration since then has treated marijuana as mad, bad and dangerous to know, with virtually no attempt made to reclassify it. And that list includes the current one.

“It’s a bit of an Alice in Wonderland scenario with the Obama administration,” explains Kris Hermes of American for Safe Access (ASA). “He made statements prior to being elected about changing the policy on marijuana, but in reality the opposite has happened.”

Not only have there been more medical marijuana arrests during Obama’s administration than the entire Bush regime, but even in states like California and Washington, there’s been a steady rise in the number of people being raided even though they’re in full compliance with state law. The federal government has threatened landlords and financial institutions working with medical marijuana businesses; the IRS has been involved with audits; pro-pot lawmakers have been bullied; and veterans using marijuana for conditions like post-traumatic stress disorder have been denied medical benefits by the Veterans Administration—all because of marijuana’s Schedule I status.

On the other hand, dropping pot down a notch to Schedule II (let alone III, IV or V, or removing it from the Controlled Substances Act completely) would be a big step in resolving the clash between state and federal law, since such a move would at least acknowledge marijuana’s medical utility and allow doctors to legally prescribe it.

So what can be done to reschedule marijuana in a country where the “drug czar” is required by law to oppose any attempt to legalize the use of a Schedule I substance—in any form?

Time to put on our trusty journalist-provocateur’s hat and go through the looking glass into the bizarre legal labyrinth of the rescheduling process. Kris Hermes warned that it wouldn’t be easy: “Bureaucrats shut down and refuse to talk when it’s convenient for them not to talk… when it suits their purpose!”

I Contact the DEA

Phoning the DEA is an unnerving experience—a sensation similar to being in high school and calling your dad at 2 am to inform him that you’ve crashed the family car (though now safe in the knowledge that the NSA will keep tabs on me).

I get a DEA representative on the phone. He goes by the name Rusty. (Perhaps because of his employer’s corroded views on ending the drug war?)

“Could I get any information regarding the rescheduling of medical marijuana?”

“I don’t want to spark a debate,” Rusty from the DEA replies. “I don’t know if that’s something we’d weigh in on. I don’t know what the point would be—our stance is pretty much on our website.”

Rusty from the DEA informs me that the agency’s position on medical marijuana can be found under the tab astutely labeled “The Dangers and Consequences of Marijuana Abuse.” (The thirty-page PDF reads like some bureaucrat’s idea for a remake of Reefer Madness.)

The key words in this manifesto: dangers, consequences, abuse. That doesn’t seem to indicate much willingness to consider pot’s medical value. Apparently, the DEA is still convinced that cancer victims are merely “abusing” marijuana to alleviate their chemotherapy-induced vomiting and nausea.

Rusty from the DEA adds: “You know, Congress can change this at any point—which people seem to forget.”

Perfect. That would be the same body that recently shut down the federal government and threatened the United States with default. But while the DEA might say that rescheduling is up to Congress, according to the ASA, that’s not exactly the case. The DEA actually delays the process—with no time limit imposed for answering rescheduling petitions, the agency takes the longest possible time before reaching a decision. (And then it says no.) To get around to denying the ASA’s rescheduling petition, it took the federal government a whopping nine years.

I Contact the FDA

According to a memorandum of understanding between the DEA and the Food and Drug Administration, a rescheduling petition has to go through the FDA. (Despite the fact that the DEA is under no obligation to recognize the conclusions of that agency.) Meanwhile, roughly every nineteen minutes, an American dies of accidental prescription-drug overdose—and these are pills approved by the FDA. (“Approved!”) Since the big pharmaceutical companies can’t make money off homegrown medical marijuana, might that be swaying the FDA’s recommendation?

“Can I ask a few questions about the rescheduling of medical marijuana?” I ask an unnamed FDA representative.

“I’m looking into this for you,” she replies.

Moments later…

“We cannot comment on this topic due to pending citizen petitions, other than to say our analyses and decision-making processes are ongoing.”

Not much to work with there, though I’m intrigued by the mention of “pending citizen petitions.” I press on: “What would be the process needed for medical marijuana to be approved by the FDA?”

“As you are aware, Schedule 1 drugs have no currently accepted medical use in treatment in the United States, and as I indicated before, we cannot comment on this topic of rescheduling due to pending citizen petitions.”

My information parade has been rained out. Why so cagey? After all, the FDA approved Marinol, whose active ingredient is 100 percent synthetic THC (i.e., the stuff that makes pot so dangerous and addictive that it has to be classified as Schedule I). And Marinol, strangely enough, is Schedule III—even though no pot plant in the history of marijuana has tested at 100 percent THC. (Even the strongest pot these days clocks in at under 40 percent.)

So my basic question goes unanswered, though the FDA representative does grant me an open invitation to check out the agency’s website—anytime I please!

My inquiry at the Justice Department yields similar results: “Hi Harmon—DOJ’s enforcement policy on marijuana is in the attached. Thanks.”

My attempt at securing a comment from the DC Circuit Court of Appeals—which threw out the ASA’s appeal on its rescheduling petition—doesn’t go much better: “I’m sorry. I don’t know the answer to your question. I am sure there must be subject matter experts out there who would know.… Good luck!”

Down and Down the Rabbit Hole…

At the heart of the approval process is the National Institute on Drug Abuse. Ironically—or maybe not—the organization is funded by the federal government. Catch-22: for the DEA to reschedule marijuana, scientific studies authorized by NIDA have to prove its medical benefits. This is basically like putting the mice in charge of the mousey snacks. In his now-famous about-face on medical marijuana, Dr. Sanjay Gupta pointed out how many of NIDA’s studies are actually designed to find detrimental effects—with only about 6 percent, he estimates, looking into medical benefits. The end result of NIDA’s efforts: the almost-complete suppression of research into the therapeutic value of marijuana.

NIDA’s response: “The best resource for questions about rescheduling is the Drug Enforcement Administration.” (A phone number is provided.)

Reaching deep into my journalist-provocateur’s bag of tricks, I try a more straightforward approach: “What would it take to have medical marijuana rescheduled? Clearly we’re at a crossroads where public opinion is changing, yet the federal government doesn’t want to change its stance. Is it left to further scientific studies or any other factors?”

“You’ll need to contact the DEA for questions about rescheduling.”

And so I’m back at square one. It turns out that getting an answer from the federal government on rescheduling marijuana is a lot like contacting the local Scientology center and asking them to go on record about the planet Xenu. In the meantime, the Supreme Court recently declined to hear ASA’s appeal on its rescheduling petition—the one that the DEA waited nine years to reject, and that the DC Circuit Court turned down on appeal, declaring that only Congress has the power to amend the Controlled Substances Act.

If the federal government is determined to maintain marijuana as a highly illegal Schedule 1 substance—despite overwhelming scientific evidence to the contrary and an ongoing sea change in public opinion—then perhaps its best ploy at this point would be to sit on its hands and do absolutely nothing.